Citation NR: 9707574
Decision Date: 03/06/97 Archive Date: 03/13/97
DOCKET NO. 93-12 753 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to reimbursement or payment by the Department of
Veterans Affairs (VA) of the cost of unauthorized medical
services rendered at the Sacred Heart Hospital in Pensacola,
Florida on January 10, 1992.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Theresa M. Catino, Associate Counsel
INTRODUCTION
The veteran served on active military duty from February 1952
to February 1956.
In a January 1996 statement, the veteran raised the issues of
entitlement to a disability evaluation greater than
20 percent for the service-connected lumbar laminectomy,
entitlement to a disability rating greater than 40 percent
for gastrectomy, and entitlement to a total rating based on
individual unemployability. These claims are not
inextricably intertwined with the current appeal and are,
therefore, referred to the regional office (RO) for
appropriate action.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that the criteria for reimbursement or
payment by the VA of the cost of unauthorized medical
services rendered at the Sacred Heart Hospital in Pensacola,
Florida on January 10, 1992 have been met. Specifically, the
veteran asserts that, although he did not obtain
authorization before obtaining this treatment, this private
medical care was necessary. He claims that his
service-connected gastrectomy required emergency treatment
and that VA or other Federal facilities were not feasibly
available.
DECISION OF THE BOARD
The Board of Veterans’ Appeals (Board), in accordance with
the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp.
1995), has reviewed and considered all of the evidence and
material of record in the veteran's claims file. Based on
its review of the relevant evidence in this matter, and for
the following reasons and bases, it is the decision of the
Board that the preponderance of the evidence is against the
claim of entitlement to reimbursement or payment by the VA of
the cost of unauthorized medical services rendered at the
Sacred Heart Hospital in Pensacola, Florida on January 10,
1992.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's claim has been obtained insofar
as possible.
2. On January 10, 1992, the veteran underwent an upper
endoscopy on an outpatient basis at the Sacred Heart
Hospital.
3. At the time that the veteran received the unauthorized
medical services in January 1992, he had been assigned the
following evaluations for his service-connected disabilities:
20 percent for status-post gastrectomy and 20 percent for
status-post lumbar laminectomy.
4. A medical emergency of such nature that delay would have
been hazardous to the veteran’s life or health did not exist
at the time of the January 1992 unauthorized treatment.
5. At the time of the January 1992 unauthorized treatment, a
VA medical facility was feasibly available (treatment would
not have been refused) and an attempt to use such a facility
beforehand, or to obtain prior VA authorization for the
services required, would have been reasonable, sound, wise,
and practicable.
CONCLUSION OF LAW
The criteria for reimbursement or payment by the VA of the
cost of unauthorized medical services rendered at the Sacred
Heart Hospital in Pensacola, Florida on January 10, 1992 have
not been met. 38 U.S.C.A. §§ 1728, 5107(a) (West 1991);
38 C.F.R. § 17.120 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran's claim is well-grounded within the meaning of
38 U.S.C.A. § 5107(a). That is, the Board finds that the
veteran has presented a claim which is plausible. The Board
is also satisfied that all relevant facts have been properly
developed. There is no indication of any outstanding
pertinent records that could be obtained. Consequently, the
record is complete. As sufficient evidence exists to address
the merits of the veteran’s claim, the Board concludes that
VA has adequately fulfilled its statutory duty to assist him
in the development of his claim. No further assistance to
the veteran is required to comply with the duty to assist
mandated by 38 U.S.C.A. § 5107(a). Murphy v. Derwinski,
1 Vet.App. 78 (1990); Littke v. Derwinski, 1 Vet.App. 90
(1990).
In order for a veteran to be entitled to reimbursement or
payment for medical expenses incurred without prior
authorization from VA, three criteria must be met. First,
the treatment received must be for an adjudicated
service-connected disability or for a nonservice-connected
disability associated with and held to be aggravating an
adjudicated service-connected disability, or the veteran must
have been totally and permanently disabled due to a
service-connected disability. Second, the care and services
not previously authorized must be shown to have been rendered
in a medical emergency of such nature that delay would have
been hazardous to the veteran’s life or health. Third, VA or
other Federal facilities must not have been feasibly
available, and an attempt to use them beforehand or to obtain
prior VA authorization for the services required would not
have been reasonable, sound, wise, or practicable, or
treatment had been or would have been refused. 38 U.S.C.A.
§ 1728(a) (West 1991); 38 C.F.R. § 17.120 (1996).
The Board notes that, since the RO furnished the veteran with
the statement of the case in December 1992, this pertinent
regulation was re-numbered. As shown in the statement of the
case, the regulatory provision had been numbered as 38 C.F.R.
§ 17.80. Recently, the provision was changed to 38 C.F.R.
§ 17.120. However, the substantive portion of this
regulation has not changed.
In the present case, at the time of the unauthorized
treatment in January 1992, the veteran had the following
service-connected disabilities: status post gastrectomy
(20%) and status post lumbar laminectomy (20%). The medical
procedure he underwent on January 10, 1992 at the Sacred
Heart Hospital was an outpatient upper endoscopy. Clearly,
the unauthorized medical treatment was rendered for a
service-connected disability. Consequently, the first
requirement of 38 C.F.R. § 17.120 has been met. See
38 C.F.R. § 17.120(a). Significantly, however, after a
thorough and complete review of the pertinent records
included in the claims folder, the Board concludes that the
second and third criteria for reimbursement or payment by the
VA of the cost of unauthorized medical services rendered at
the Sacred Heart Hospital in Pensacola, Florida on January
10, 1992 have not been satisfied.
A report of a January 7, 1992 office visit noted complaints
of “a lot” of tight feeling in the upper abdomen and
retrosternal area for the previous few days, nausea,
vomiting, extreme agitation during the prior night,
nervousness, tightness in the chest, back problems, and
severe burping. Examination showed a soft and nontender
abdomen. The assessment of questionable recurrent ulcer or
other problems was provided. The plan included continuation
of medication. In addition, the veteran’s private physician
stated, “Will get upper endoscopy.” In an April 1992 letter,
this physician cited the January 7, 1992 office visit and
expressed his opinion that the veteran “required an urgent
upper endoscopy to determine the cause of . . . [his]
symptoms,” including abdominal and chest pain.
According to a gastroenterology note from the Sacred Heart
Hospital, the veteran reported on January 10, 1992 that he
was experiencing abdominal gas, bloating, and discomfort
postprandially which was progressively worsening over the
previous several months and which was not responding to
therapy. The veteran also stated that he had experienced
nausea and vomiting periodically but not within the prior few
days. He had stable weight; regular bowel movements without
constipation, diarrhea, melena, or hematochezia; and no
hematemesis. His medical history was significant for ulcer
disease with ulcer surgery in 1965 and 1986.
General evaluation showed that the veteran was not in acute
distress. Examination of his abdomen demonstrated epigastric
tenderness; weakening of the abdominal musculature due to the
two previous surgeries; no masses, organomegaly, or
distention. A rectal evaluation was deferred.
On this same day, the veteran underwent an outpatient upper
endoscopy at this medical facility. According to the
operative report, the veteran’s pertinent medical history was
significant for progressive gastrointestinal complaints which
were not responsive to therapy, ulcer disease, and surgery.
Endoscopic impression included post gastrectomy with widely
patent surgical anastomosis, normal appearing efferent and
afferent limb, and mild stromal gastritis manifested by
friable erythematous and slightly granular mucosa around the
anastomosis. Helicobacter CLO testing was pending. The
post-operative plan was to discontinue Maalox and Zantac
because the veteran “should be hypo or achlorhydric
post-surgery” and to treat him with Cytotec. Because of the
veteran’s history of a gastrectomy and anemia, the attending
physician recommended initiation of vitamin B 12 therapy. On
the gastroenterology report, the attending physician also
noted that the endoscopy showed post gastrectomy with mild
gastritis and recommended a change in the veteran’s
medication due to his previous high gastrectomy.
Thereafter, in September 1992, the veteran’s private
physician explained that on January 7, 1992 the veteran was
“ill with a lot of pain in his upper abdomen with nausea and
vomiting and agitation” and that he did have a known history
of surgery for peptic ulcer disease and bleeding. This
physician expressed his opinion that “[i]t was necessary for
him [the veteran] to have [an] upper endoscopy done at that
time.” According to this letter, the veteran had informed
his physician that he was “unable to travel for any
significant distance to have [the] endoscopy done in another
center because of his back problems.”
In July 1995, the Chief Medical Officer of the VA “Clinic of
Jurisdiction” in Bay Pines, Florida stated that he had
reviewed multiple records, including the veteran’s private
physician’s January 7, 1992 office note and April and
September 1992 letters, the January 10, 1992 gastroenterology
note and operative report, and the veteran’s January 1993
statement. Significantly, this examiner expressed his
opinion that the unauthorized treatment that the veteran
received on January 10, 1992 at the Sacred Heart Hospital was
not of an emergent nature.
Specifically, this examiner noted that the three day delay
between the date of the office visit (January 7, 1992) and
the day that the endoscopy was actually performed (January
10, 1992) was “de facto evidence of the non-emergent nature
of this procedure.” In addition, the examiner cited the
January 10, 1992 gastroenterology note which discussed the
chronicity of the veteran’s symptoms, including abdominal
gas, bloating, and discomfort post-prandially which had
worsened over the prior several months. The gastroenterology
note also included the attending physician’s opinion that the
veteran was in “no acute distress.” The VA examiner also
pointed out that, although an abdominal examination
demonstrated epigastric tenderness in January 1992, the
attending physician did not describe an acute abdomen. In
addition, the VA examiner noted that a rectal examination to
determine the presence or absence of occult blood in the
stools was not done. Moreover, the VA examiner cited the
January 10, 1992 operative report which described “only mild
to moderate gastritis, without more serious findings.”
Furthermore, the VA examiner stated, based on a review of the
pertinent medical records, that a “reasonable” delay of one
to three weeks “would not have adversely affected [the]
veteran’s prognosis.” Consequently, this physician concluded
that VA facilities “were indeed feasibly available to the
veteran.”
The Board notes the veteran’s contentions that his
service-connected gastrectomy required emergency treatment on
January 10, 1992 and that VA or other Federal facilities were
not feasibly available. He has asserted that transportation
to the nearest comparable VA medical facility, which was
130 miles away, would have posed a serious hazard to his
health. Moreover, he has claimed that the severity of his
service-connected low back disability prevented him from
traveling any great distances. In addition, the Board
acknowledges the statement of the veteran’s private physician
that the veteran’s upper endoscopy in January 1992 was
“urgent” and “necessary.”
Significantly, however, the veteran’s private physician
provided no rationale for his opinion that the veteran’s
January 1992 upper endoscopy was “urgent” or “necessary.”
Moreover, the VA examiner who had reviewed the veteran’s
pertinent medical records and statements, has provided
complete rationale for his opinion that this unauthorized
treatment was not of an emergent nature, that VA facilities
were feasibly available, and that a reasonable delay of one
to three weeks would not have adversely affected the
veteran’s condition. The VA examiner cited the three day
delay between the date of the office visit (January 7, 1992)
and the day that the endoscopy was actually performed
(January 10, 1992), the absence of severity of symptoms when
the veteran reported for the outpatient procedure (as
illustrated in the January 10, 1992 gastroenterology note),
and the lack of a diagnosis of severe findings after the
unauthorized medical procedure (as shown on the January 10,
1992 operative report).
After a thorough review of the pertinent records, the Board
concludes that the outpatient upper endoscopy that the
veteran underwent on January 10, 1992 at the Sacred Heart
Hospital did not constitute a medical emergency and that, at
the time of this unauthorized medical treatment, other VA
facilities were feasibly available to him. See 38 C.F.R.
§ 17.120. The medical opinion and rationale provided by the
VA examiner in July 1995 outweighs the conclusion made by the
veteran’s private physician. Consequently, the claim for
reimbursement or payment by the VA of the cost of
unauthorized medical services rendered at the Sacred Heart
Hospital in Pensacola, Florida on January 10, 1992 must be
denied.
ORDER
Reimbursement or payment by the Department of Veterans
Affairs (VA) of the cost of unauthorized medical services
rendered at the Sacred Heart Hospital in Pensacola, Florida
on January 10, 1992 is denied.
MICHAEL A. PAPPAS
Acting Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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